Are Federal Health Insurance Mandates Constitutional?

There have been some on-line discussions recently of whether a federal mandate that individuals obtain health insurance would violate the U.S. Constitution. This issue is distinct from the issue of whether other sorts of government health programs â€“ such as single-payer â€“ would be constitutional.

It is also distinct from whether states can impose insurance mandates. They can: States have general governmental powers. But the federal government has only the powers enumerated (listed) by the Constitution.

Let us be clear at the outset that federal involvement in health care (except in a few isolated instances, such as federal employee benefits) certainly violates the Constitution as that document was originally understood.

I have now spent nearly twenty-years of my life researching and publishing scholarly studies on the Founding-Era record, and I have found no significant evidence that those who wrote and ratified the Constitution thought federal power would extend to health care. Quite the contrary: When the Constitution was being promoted to the public, one of the big selling points was that regulation of all such matters would remain exclusively with the states.

So for those who subscribe to the widely-held view that the Constitution, like any other legal document, means today what it meant when adopted (aside from amendments), there is no real question: Federal health care mandates are unconstitutional.

The more-discussed point, however, is whether such mandates are within the federal governmentâ€™s authority as that authority is applied by the Supreme Court today. More specifically, does the mandate qualify under Congressâ€™s Commerce Power as a law â€œnecessary and proper for carrying into Executionâ€ the power â€œTo regulate Commerce . . . among the several States. . . ?â€

Recent Supreme Court cases are split between (1) those that hold that a law qualifies if it regulates an activity that â€œsubstantially affectsâ€ interstate commerce and (2) those that hold that a law qualifies if Congress could rationally believe that the activity â€œsubstantially affectsâ€ interstate commerce. Because of changes in personnel on the Court, it is not clear which standard the Court would apply. Of course, everyone agrees that health care activity as a whole â€œsubstantially affectsâ€ interstate commerce.

Nevertheless, federal health insurance mandates face at least two difficulties meeting either of the modern Courtâ€™s standards for the federal Commerce Power. The first is that just doing nothing â€” not buying heath insurance â€” is not an â€œactivity.â€

In a famous case relied on by those who think mandates are constitutional, the Court upheld application of maximum acreage legislation to a farmer who kept the wheat sold on his â€œexcessâ€ acreage for his own use. But in that instance, the farmer was engaged in a commercial business, and sold much of his product on the open market. In another case similarly relied on, the Court extended the Commerce Power to people who grew, exchanged, and used medical marijuana. But, again, in that case those regulated were actually engaged in activities that could be regulated.

But most of those commanded by federal insurance mandates are doing nothing but breathing.

A second potential constitutional problem is that if the Court were to uphold a regulation on people doing nothing to regulate, then the justices really would have to confront the question of where there is anything outside the federal commerce power. For years, critics of the modern Supreme Court have attacked its expanded commerce power jurisprudence with the reductio ad absurdum argument that the courtâ€™s jurisprudence would permit Congress to regulate people just for breathing.

Now that absurdum is here. Certainly the Supreme Court is sensitive enough to legal consequences to hesitate before taking that final step.

The Supreme Court also is sensitive to political consequences. Mandates are likely to prove quite unpopular with an outspoken and influential part of the American population. Although most Supreme Court justices probably do not consciously consider the popularity of a challenged law, history suggests that such factors have a subconscious effect.

At any rate, these are serious questions, worthy of serious consideration by Members of Congress. Members of Congress should not merely blow them off as irrelevant, as Speaker Pelosi has infamously done. After all, our legislators take an oath to uphold the Constitution, just as Supreme Court justices do.

Rob Natelson is a constitutional law professor at the University of Montana, and runner-up in the 2000 â€œopen primaryâ€ for Governor of Montana. His opinions are his own, and should not be attributed to any other person or institution.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.

Prof. Natelson does, however, indicate that there is a legal argument to be made in regards to regulating because people are merely "breathing." I guess, so, given the current precedent. It is unfortunate that we have to get "clever" with our arguments in order to avoid the embarrassment of a long line of judicial error. And I don't mean my "clever" comment to be directed negatively at Prof. Natelson. The system is what it is, and my criticism is of the system.

I distinguish this by saying that Social Security and Medicare, as much as we like to be told otherwise, are social programs that are funded by general revenues. Yes, there are FICA taxes that supposedly support these programs, but those funds go directly to the federal treasury and Congress can do what it wishes with the overage, and fund underpayments from general revenues as well. It's a total fiction that SS and Medicare are somehow unrelated to general tax-and-spend powers of the federal government, or that they are independent from the budget. Calling them "off-budget" doesn't make it so.

As for whether the mandate is otherwise constitutional, it isn't. It requires you to pay a third party for services that you might not otherwise want. That's not a tax — the only money going to the government is a fine if you don't buy the policy, and that wouldn't satisfy your obligation to then buy insurance. It's not regulation of commerce, because failing to buy insurance is no less engaging in commerce than failing to buy the creme brulee last night at dinner. If interested, I'd refer you to a couple posts of mine on this:

Never before in our history has the government presumed to mandate an activity and to tax inactivity. If this were constitutional, then there is no iota of activity that would not be under the control of the federal government, Every single dollar spent would be able to be mandated as spent per the govenment"s desires. Remains to be seen if the Supremes would dare to rubberstamp such a concept which so flies in the face of the clearly intended limitation of federal authority so specified by the founders.

If there is truly no activity that the federal government cannot control, then there are no powers at all left to the states or to the people and it is time for a 2nd revolution. Who would need a Cash for Clunkers program if people can be mandated to each buy a car every ( ) years from the government owned car company. We have almost reached this point by fiat with the pending regulation of every aspect of American life that consumes any energy and therebye generates CO2 which the Congress has given control of to the EPA. Extra fees for keeping your car too many years. Forgot to adjust your thermostat? Don't worry. The smart grid will shut it off for ( ) extra hours and automatically bill (fine) you for your carelessness. How long before we have an environmental impact tax on a Big Mac? For the children. For the planet. For the friends of the currrent career politicians. For the reelecton campaign. Pick a reason. Just keep producing so that taxes can be collected and the gravy train continue.

In Atlas Shrugged, the producers all escaped to a hidden valley and did for themselves. In socialist countries, the producers all throttle back and do the minimum necessary to coast through life, and the economy takes a major hit and nothing works right as the country declines, while the corrupt and connected are the only ones that prosper.. Why do we need to go through those lessons already so painfully learned elswhere?

Prof: Excellent post! What are your thoughts on the right of individuals to contract? If the government mandates in the healthcare bill that it is illegal to hire direct services from a doctor, does that not infringe on basic contractual rights? It seems to me that my ability to pay a doctor directly for services in the amount of say $500 per month, and he/she agrees to provide my medical care, that is a basic fundemental, constitutional right.

The current legislation would forbid that. Is that a worthy constitutional argument?

Dr. Rick: Great points! My campaign is built on re-affirming the 10th amendment and challenging the 16th amendment which gives the federal government the right to directly tax the people. I will ask the voters of Colorado to amend the state constitution to limit the amount of federal taxation to a maximum of 18% of income. The argument being that if the federal government can tax us directly does it mean they can tax 100% of our income? If not, then what is the limit? We need to challenge their ability to take our money and fund their excess. The only way to do this is by the state governors working together with state legislatures to cut off the funding and put the power back where it belongs. Our federal reps and a few of our supreme justices are too self interested to do what is right anymore; uphold the constitution. They have abandoned our constitution.

Here's my response to the question raised by Rich Hand: "What are your thoughts on the right of individuals to contract?" The text of the Constitution does not recognize such a right vis-a-vis the federal government. The Contracts Clause protects individuals only against state governments. Some people read a right to contract in the Due Process Clauses. I think that is clearly incorrect. Others read it into the Privileges and Immunities Clause of Article IV. I think that also is clearly incorrect. Still others read it (again, as a protection only against the states) in the Privileges or Immunities Clause of the Fourteenth Amendment. That's debatable. It is important to recognize (unlike, say, Nancy Pelosi) that every thing we'd like to see in the Constitution is not necessarily there.

And where is the power to compel the people to engage in a contract? Such a power would turn contract law on its head. Putting a gun to the head of the people and saying engage in a contract with an insurance company or suffer the consequences is a compelled contract. If the federal government had this power then freedom would cease to exist because the flip side of the coin is the power deny the people the right of contract.

Prof. Natelson is not arguing in favor of current jurisprudence at all. In the realm of legal teaching and discourse, when we say "are authorized under a broad view," we do not mean by that anything, except, "If you read the powers broadly, then, that would be the basis to find authorization." He is not saying he accepts a broad view intepretation.

For you non-lawyers, most in the legal field laugh under their breaths when the argument about Constitutional construction and usurpation comes up because we know that it has all gone beyond the intent. It's just some of us seem to accept it better than others because the current paradigm, even if not intended, fits their views of social justice better.

There are many different philosophical approaches to social politics, and not every one of those boils down to ink on parchment.

Rob Natelson here — I'd like to answer some of the questions posed. Remember that my article was mostly about modern constitutional interpretation, not the original meaning.

Jeff Matthews: Social Security and Medicare are authorized under a broad interpretation of Congress' Spending Power. Health Insurance mandates would be authorized, if at all, under the current interpretation of the Commerce Power. That's one reason I said the mandate issue "is distinct from the issue of whether other sorts of government health programs – such as single-payer – would be constitutional." The modern Supreme Court has upheld the constitutionality of the Social Security program, and almost certainly would do the same for Medicare.

Dr. Rick: "Never before in our history has the government presumed to mandate an activity and to tax inactivity. If this were constitutional, then there is no iota of activity that would not be under the control of the federal government." That is correct — and I made that point in my article.

1. Prof. Natelson: "States have general governmental powers." The statement is too broad. I practiced law in Wisconsin and in several other states. Never have I seen a state constitution granting plenary powers. Could the professor supply an example?

2.The professor writes to Jeff Matthews: "Social Security and Medicare are authorized under a broad interpretation of Congress' Spending Power." No , not even under a broad interpretation. See my article, "THE GENERAL WELFARE CLAUSE: How a Constitutional Restraint Was Transformed Into a Constitutional Power", cite to follow in comment below.

Doug, thanks for the input here. I'm not sure about your first point, but on the 2nd – keep in mind that the article is primarily discussing current jurisprudence. Now, under an original understanding and intention of the founders and ratifiers, I think the answer is quite clear – and far from the current view in Washington DC.

It seems there maybe a loophole with respect to SS, medicare and medicaid with respect to our constitution, Reason being that the states, share collected tax income with the feds which could be construed as a form of consent by those states who do in fact have the power, as remunerated within our constitution to act in concert with those who live in those states with respect to SS, medicare and medicaid. A prime example is food stamp program where those who live in Nevada only receive half as much in food subsidies do to the fact that Nevada DOES NOT share income with the feds. Other states on the other hand share income and as a result food subsidies are double that of those of Nevada residents.

Simply, departmentalization of requirements.
Of this and other reports, the base truth still holds.
The two lane road to real control is comprised of legislative freedom And establishment of 'state settlement banks.'
Those, and entities, who are for real about these issues have in effect only these courses of action.
Gun rights are another ghost, as the second amendment does not address the asserted 'property rights control' exercised by and through public entities.
Whatever is allowed by 'we the people' is considered by the power brokers to be acceptable…!
One very important issue no one is addressing deals directly with the basic people's right to elect anyone whom they chose. However, without complying with election 'laws', no one outside the regulated and registered parties or candidates are allowed.
There is one loophole in this planned restriction known as the write in.
The Tea Party is leading the Republican and in a close chase of the Democratic party!
Were the Tenth Amendment Center, Tea Party, and Constitution parties to unite, We The People might just get somewhere. Hence my advocation to do so.
There are a great many mandates, requirements, and precedents that are obviously contrary to our Constitution. Hence unconstitutional in their basis.
The retirement systems were set up correctly, soundly, etc.
Instead of the so called 'trust', 'excess' funds were first borrowed, and the 'trust' broken in order to allow government 'borrowing', control, etc. Because these funds were never paid back, we now have a serious problem…And, all funds go directly into the general fund. Easier to hide that way.
Getting legislated is less than half the problem. The financial responsibility taken by any state and its people will result in an attempt, by force, to return said financial control to the corporate entity, The Fed.
A hard choice at best and dangerous in many ways. Bear in mind that every one of those outing the corruption has been killed.
The coming unrest as 'things in general' start to fail, is to be met with full military force. Survivors being interred in the country wide concentration camps.
Time is short, workers few, and insufficient interest in these things at present…
If the reports I'm getting are true indicators, very serious problems are starting. Due to our national credit fiasco, 'things in general' do not look good. You know, keeping the lights on by using foreign fuels, no manufacturing, and an almost total loss of family farming/gardening.
When 'things' get turned off, how well will you survive?
The 'need' is immediate, or the unprepared can figure it out from scratch.

Simply, departmentalization of requirements.
Of this and other reports, the base truth still holds.
The two lane road to real control is comprised of legislative freedom And establishment of 'state settlement banks.'
Those, and entities, who are for real about these issues have in effect only these courses of action.
Gun rights are another ghost, as the second amendment does not address the asserted 'property rights control' exercised by and through public entities.
Whatever is allowed by 'we the people' is considered by the power brokers to be acceptable…!
One very important issue no one is addressing deals directly with the basic people's right to elect anyone whom they chose. However, without complying with election 'laws', no one outside the regulated and registered parties or candidates are allowed.
There is one loophole in this planned restriction known as the write in.
The Tea Party is leading the Republican and in a close chase of the Democratic party!
Were the Tenth Amendment Center, Tea Party, and Constitution parties to unite, We The People might just get somewhere. Hence my advocation to do so.
There are a great many mandates, requirements, and precedents that are obviously contrary to our Constitution. Hence unconstitutional in their basis.
The retirement systems were set up correctly, soundly, etc.
Instead of the so called 'trust', 'excess' funds were first borrowed, and the 'trust' broken in order to allow government 'borrowing', control, etc. Because these funds were never paid back, we now have a serious problem…And, all funds go directly into the general fund. Easier to hide that way.
Getting legislated is less than half the problem. The financial responsibility taken by any state and its people will result in an attempt, by force, to return said financial control to the corporate entity, The Fed.
A hard choice at best and dangerous in many ways. Bear in mind that every one of those outing the corruption has been killed.
The coming unrest as 'things in general' start to fail, is to be met with full military force. Survivors being interred in the country wide concentration camps.
Time is short, workers few, and insufficient interest in these things at present…
If the reports I'm getting are true indicators, very serious problems are starting. Due to our national credit fiasco, 'things in general' do not look good. You know, keeping the lights on by using foreign fuels, no manufacturing, and an almost total loss of family farming/gardening.
When 'things' get turned off, how well will you survive?
The 'need' is immediate, or the unprepared can figure it out from scratch.

Doug Bartley: As Jeff Matthews correctly observes, I was commenting about modern interpretations of the Spending Power. My views on the original understanding are set forth in The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1 (2003), which you can find with the rest of my stuff at http://www.umt.edu/law/faculty/natelson.htm

D. Struct: Under our constitutional system, the states are not in the position to consent to the alteration of the Constitution's rules for the balance of power, other than through the formal amendment process. This is because the Constitution is not a compact among states, as so often claimed, but a document established by the people whereby they divided power between states and federal government. (The "state compact" theory did not become common until the 19th century.) As Justice O'Connor eloquently pointed out in New York v. United States (1992), the Constitution is set up to protect the liberty of individuals, and what state politicians decide to concede for their own purposes is irrelevant.

One more thing: on contracts rights. Prof. is correct in saying the due process clause is not the source of those rights. Due process only relates to judicial proceedure.

Some jurists have argued the obligation of contracts clause (Article 10) is only binding on states and therefore not the Federal Government. However, that's a facile out, because it doesn't address whether the federal courts have the power to set aside contracts. The answer is they don't, for there is no enumerated power to do so. The Federal Government has only those powers enumerated.

And no one could rightly argue that that the Necessary and Proper Clause allows the abrogation of contracts, for any legislation that sought to do that would not be "Proper", i.e., legal. See Madison's essay in The Federalist on the evils of contract abrogation.

Also, there is the 9th Amendment, which protects all rights not enumerated in the Bill of Rights. The right to have contracts enforced, and not trashed, is as valid a right as any other; and was a right mentioned in the post-Civil War legislation of 1868 I believe.

One more thing: on contracts rights. Prof. is correct in saying the due process clause is not the source of those rights. Due process only relates to judicial proceedure.
However, the federal courts may not abrogate contracts, even though there is no impairment clause specifically aimed at the federal government. The reason for that is that there was no power given to abrogate contracts, an idea that was horrifying to Madison speaking in the Federalist on the Article 10 prohibition against states abrogating contracts. The Article 10 provision, therefore, is not a negative pregnant empowering the federal government to trash contracts.
Nor is the necessary and proper clause a source of such a power. Impairing the obligation of a contract is never proper, i.e., legal, for the right to contract has long been recognized as a human right, and even mentioned in the Civil Rights Legislation of 1868, I believe. Consequently the right to contract is one of those unenumerated rights protected by the 9th Amendment.

Doug – you're confusing the idea of a "national" people, with "the people" constitutionally-speaking, which is the people of the several states.

States did NOT ratify the constitution. It was the people of the states. This is seen in a number of places quite clearly – most notably, the fact that state governments were deliberately skipped in the ratification process. This was done to ensure that there was no question that it was the people, and not the governments which were doing the ratifying. Also, this was what the federalist proponents of the Constitution all made clear.

And, on top of it, James Madison, in his report of 1800 explains the distinction of States as State governments and States as the people of the states – the latter being the sovereign, the source of power, and the ratifiers of the constitution.

One more thing: on contracts rights. Prof. is correct in saying the due process clause is not the source of those rights. Due process only relates to judicial proceedure.
However, the federal courts may not abrogate contracts, even though there is no impairment clause specifically aimed at the federal government. The reason for that is that there was no power given to abrogate contracts, an idea that was horrifying to Madison speaking in the Federalist on the Article 10 prohibition against states abrogating contracts. The Article 10 provision, therefore, is not a negative pregnant empowering the federal government to trash contracts.
Nor is the necessary and proper clause a source of such a power. Impairing the obligation of a contract is never proper, i.e., legal, for the right to contract has long been recognized as a human right, and even mentioned in the Civil Rights Legislation of 1868, I believe. Consequently the right to contract is one of those unenumerated rights protected by the 9th Amendment

Doug Bartley: States possess what the courts call the "police power." (This an archaic use of "police," akin to "policy.") Describing it as a "general governmental power" was my way of translating if for the lay person. While state constitutions typically deny their state governments some authority (such as infringing free speech), none to my knowledge use the enumerated power approach adopted in the U.S. Constitution. Instead, they apply the rule that, if a power is not denied by the state or federal constitutions, the state has it.

In Federalist Essay No. 39, Madison made the following statement concerning the mode of ratification:

" …It must result from the unanimous assent of the several states that are parties to it [the Constitution]…"

Article VII of the Constitution:

" The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

done in Convention by the Unanimous Consent of the States present…In Witness whereof We have hereunto subscribed our Names."

The words “between the States” were added by a special motion in the Convention “to confine the operation of the government to those States ratifying it.”

Between the States and by the Consent of the States. If the Constitution is a not compact between the States then this Clause is an absurdity.

If the Constitution is not a compact between the States, then the the Kentucky and Virginia Resolutions drafted in response to the Alien and Seduction Laws are absurdities and the States have absolutely NO right or power to nullify a federal law.

Bob: Good show. You have well digested the matter. And for the 10th Amendment Center to deny that states created the Constitution is a not only a strange self-denial but also forfeits the debate and declares the federal expansionists the victors.

Doug, I’ve had this same discussion with Bob G. many times on this site, and while he in the past has absolutely agreed that it’s not state governments that created the federal government and in fact that it was “the people of the several states” – he’s just as clearly told me that he continues to use his version of discussion – “because it’s easier to explain”

With that aside – do you not feel that James Madison’s explanation of what is meant by “the states” – as The People of each of the States – in his report of 1800 has no validity? Or, how about ALL the federalist advocates of the constitution? Or, the absolute fact that state governments were intentionally bypassed in the ratification process?

Does none of that have any meaning? Just curious. Because those are the facts. And even when presented them, you still state the opposite.

The ratification conventions in the states were ad hoc state governments organized for a special and sole purpose: considering the draft constitution. The conventions represented the people of the various states, but quite plainly they were not the people. For the people of a state to have ratified the constitution, the constitution would have had to have been put to a plebesite. Eh?

No…but you’re getting much closer. The fouders considered the people to be sovereign. And as sovereign, they were able to retain agents to act on their behalf. The stat government were…and are today…agents of the people. The ratifying conventions, as you’ve noted, were distinct from the state governments.

So, if you retain an agent to be in charge of your banking, and another to be in charge of your will, and another to be in charge of your housekeeping….all with specific powers or duties delegated to them….it would be just as incorrect to say that your housekeeper was responsible for your savings account as it is to say the state government was responsible for the actions of the ratifying conventions.

State governments–"agents of the people"? That's pretty funny. But the main point here is that a principal agent relation is one of consent of the principal to the appointment of the agent. Obama is not my agent for anything, because I did not seek him for that job. Consequently, one cannot be another's agent merely by the consents of still others even if a majority. Therefore neither the state governments nor the state ratifying conventions were agents of the people collectively, since not every principal consented to the particular people selected.

Doug, in principle, I’m certainly with you there! constitutionally-speaking and, of course, the intentions of the founders, is different, though. The founders actually grappled with this very issue and there’s some prominent writing on how – due to constraints of the time, it was extremely difficult to impossible for the whole of the people to gather and decide on an issue. their goal was to get as close to the “will of the people” as possible.

But yes, I believe that true consent is the moral, and the right way for a free society.

December 17, 2009 at 1:43 am

Bob Greenslade

Other than as a point of discussion, it does not matter whether State Conventions or the State Legislatures debated and voted on ratification of the proposed constitution. The Founders considered them equal and interchangeable because, as you stated, they were representatives or agents of the people of each State. Both derived their authority to act from the people of each State. If the State Legislatures had been designated to vote on ratification of the proposed constitution, as opposed to State Conventions, it would not have changed the nature of the government being formed, as some people believe. Therefore, the designation of State Conventions was more symbolic than essential.

The proof of equality between State Conventions and State Legislatures can be found in Article V of the Constitution. It states, in part:

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;…”

State Legislatures can call for a Convention to propose amendments but ratification of any proposed amendment(s) is vested exclusively in either State Conventions or State Legislatures. If Congress can simply pick one, they must be equal. If my memory is correct, State Legislatures, not State Conventions, have ratified every amendment added to the Constitution since the document was adopted. If there is equality in amendment then there had to be equality in ratification.

"The proof of equality between State Conventions and State Legislatures"

Bob, that is YOUR personal analysis. It has no basis or support from the founding generation. In fact, the proponents of the Constitution argued exactly the OPPOSITE. That since they worried about the political ties of the state governments, that the ratifying conventions would be a wholly separate agent of the people.

Similar to what I explained above, if you have an accountant do your taxes, and a housekeeper do your dishes, no one is going to claim that your housekeeper is the one who filed your tax form – and no one is going to claim that they're the same person.

End of story.

If you've got something from the founding – that is, debates, federalist proponents, federalist responses to anti-federalist concerns, prominent newspaper articles or circulated pamphlets, or anything of the like up until 1800 at the very latest – I'd be interested in seeing what you have to support your opinion that State Conventions and State Legislatures are equal – which I will state is a wildly incorrect claim.

December 17, 2009 at 4:19 am

Bob Greenslade

Why do you keep twisting my comments?

I said "IF IF IF IF IF IF IF IF IF the State Legislatures HAD BEEN designated to vote on ratification of the proposed constitution, as opposed to State Conventions, it would not have changed the nature of the government being formed…" IF!!

Are you claiming that designating the Legislature as opposed to Conventions WOULD HAVE changed the nature of the government being formed?

I said: "the designation of State Conventions was more symbolic than essential."

Are you are claiming the Constitution COULD NOT HAVE been adopted if the Legislatures HAD BEEN designated as opposed to Conventions?

You said: "The proof of equality between State Conventions and State Legislatures."

I qualified my statement and said: "The proof of equality between State Conventions and State Legislatures can be found in Article V of the Constitution."

Are you claiming this Clause DOES NOT vest equality in State Legislatures and State Conventions for amending the Constitution?

I said: If Congress can simply pick one mode {Legislatures or Conventions}, they must be equal. … If there is equality in amendment then there had to be equality in ratification." MEANING… IF THEY HAD CHOSE THAT METHOD INSTEAD!

Are you claiming the Founders did not consider Conventions and Legislatures equal for purposes of adopting the Constitution but did consider them equal for purposes changing the Constitution?

If yes, then what you are saying is only Conventions could adopt the compact but Legislatures can change the compact.

You requested some documentation. Last night I emailed you some. On November 4th, you printed an article by Thomas J. DiLorenzo entitled: "Traitors to the American Revolution."

He quoted extensively from a book published in 1823 by John Taylor of Caroline. Most of the info I sent you was on this subject.

If Taylor carries weight with DiLorenzo will he carry any weight with you?

"Are you claiming that designating the Legislature as opposed to Conventions WOULD HAVE changed the nature of the government being formed?"

No, the proponents of the constitution felt this to be a concern. So they made sure the legislatures were not involved.

I said: "the designation of State Conventions was more symbolic than essential."

This statement is incorrect. It had a reason, which I outlined a number of the arguments for – again, given by proponents of the constitution.

"Are you are claiming the Constitution COULD NOT HAVE been adopted if the Legislatures HAD BEEN designated as opposed to Conventions?"

No. But that's not what happened, and all I'm arguing is what happened vs your version of what happened.

"I qualified my statement and said: "The proof of equality between State Conventions and State Legislatures can be found in Article V of the Constitution.""

Correct – IF you're referring to actions taken after the Constitution was ratified. but, since we're talking about Conventions before the ratification, this isn't applicable.

"Are you claiming this Clause DOES NOT vest equality in State Legislatures and State Conventions for amending the Constitution? "

Nope. Again, all I'm doing is stating a fact – that Ratifying conventions and State Legislatures at the time of the state ratifying conventions in the 18th century were different organizations. That is indisputable.

"Are you claiming the Founders did not consider Conventions and Legislatures equal for purposes of adopting the Constitution but did consider them equal for purposes changing the Constitution?"

They may have said they were equal in force, but they were not the SAME. That's the essential question here.

"He quoted extensively from a book published in 1823 by John Taylor of Caroline. Most of the info I sent you was on this subject."

Sure, but that doesn't change the facts.

Bob, you're all over the place on topics and questions. My only assertion here is simple – that it was the PEOPLE OF THE SEVERAL STATES and not the STATE GOVERNMENTS that ratified the constitution.

December 17, 2009 at 6:34 am

Bob Greenslade

You said: My only assertion here is simple – that it was the PEOPLE OF THE SEVERAL STATES and not the STATE GOVERNMENTS that ratified the constitution.

In the past when I said the people of the several States and the States were one in the same you took exception with that statement. The people are the States. The State governments are are not the States.

And no I am not all over the place. I responded to specific comments and statements. I also asked questions to get answers to statements that were incomplete or unclear. I also gave illustrations to show that alternative modes could have been used to get the same result in some cases being discussed.

No the State Legislatures did not ratify the Constitution but they play an important role in the process and have a voice in key provisions of the Constitution. That was the point I made in some of my responses and comments. It appears the words State Legislatures make some people run for crosses and wooden stakes.

As far as Taylor goes, I find insight from a legal mind like his to be informative…especially since he was alive and in the game at the time.

Great! Then we agree! The people of the states are the ones who ratified the constitution, and thus are the sovereign. The states in this context, like Madison explained, are just that….the people of each state.

It's the same conclusion we come to each time we have this discussion. Looking forward to it with you again in the future.

Ratifying conventions were specially-elected delegates who, when convened, had absolutely no power to legislate for the state.

And on the other side of the coin, the state legislators, when convened, had no power to decide the issue of ratification.

Thus, they were wholly separate – and explained to the public that way too.

In fact, many reasons were given for this intentional distinction, including:

1. specially elected conventions would avoid the hostility of state officials jealous of their state's sovereignty

2. less vulnerable to shifts of public opinion, than approval by state legislatures

3. most importantly, this was to demonstrate that the people of each state were sovereign, which in the American system means "final authority," and that no government would be supreme.

How you could claim they were equal and the same might be the most off-base claim you've made on this topic. but, willing to read anything you have to support it, as always!

December 17, 2009 at 5:16 am

Bob Greenslade

You said: "Ratifying conventions were specially-elected delegates who, when convened, had absolutely no power to legislate for the state."

I never said they did or inferred that they could in my comments.

You said: "How you could claim they were equal and the same might be the most off-base claim you've made on this topic. but, willing to read anything you have to support it, as always!"

Once again you twist my comments because I qualified them.

My comment concerning equality was restricted to ratification and amendment ONLY!!! I did not make a general comment about equality in the general exercise of power between Conventions and Legislatures. My point was the Constitution COULD HAVE been adopted by either State Conventions or State Legislatures IF IF IF IF the State Legislature mode had been the one designated, as opposed to Conventions mode, without changing the nature of the government being formed by the Constitution.

It would have been just as federal if the State Legislatures had ratified it as opposed to State Conventions.

You refer to the ratifying conventions as ad hoc governments. That is your personal definition for them…. this is not what they were considered at the time.

Unless, of course, you’d like to reference something considerable from the time…such as arguments of federalist proponents, discussions at the convention, newspaper reports referring to them as such, and the like…

Bob, the Report of 1800, in which Madison defined the states has no meaning to you? Interesting. Because that report was an argument for the sovereignty of the individual states, and it – as I mentioned above – makes clear the difference between states as governments and states as the people of the several states. Which, as you already know – is a big difference.

I have seen so many people mistakenly proclaim, "The federal government is the agent of the states." It is not.

The federal government is an agent of the people. State governments are agents of their respective state peoples.

Therefore, if you live in a state, you have two servants – the state government and the federal government. The way your servants were empowered is where many get confused.

The federal government has its own sovereignty (hark of hearts!). It's true, however. The federal government does not depend on the state governments.

These 2 governments exist independently of each other. As regards their certain spheres of authority, each has its own proper jurisdiction, and each must jealously defend its jurisdiction. In that regard, they are equals. One was never an agent of the other. That is not the design.

Using Natelson's example, the state government might be akin to your attorney, and the federal government might be akin to your CPA. Your CPA is authorized to file your tax return and does not need to consult of get permission from your attorney. Your attorney can prepare a deed and does not need to consult or get permission from your CPA. Each has superior power within its own jurisdiction. There is no principal/agency relationship between them. The principal/agency relationship exists only between each of them (individually) and you.

"The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments…"

If the people had not agreed to unite as individual States they could not have created a federal government. In creating, adopting and amending the Constitution the people of the several States acted and act collectively as a State and through a State. The people, in their individual capacity, did not ratify the Constitution and have not and cannot amend the powers of the federal government. Nine States had the power to put the Constitution into operation and 38 States, at the present time, have the exclusive power to amend the Constitution.

Without the State governments established by the people, the federal government could not have been brought into existence and, as stated by Madison, could not function.

Thus, the federal government does indeed depend on the state governments.

That was an observation Madison made that I think I would have to take issue with. First, he simply states that the Senate will rely upon state legislatures. That was then; not now. See the 17th.

Secondly, he merely gives the truism that state officials might tend to be influential in terms of convincing citizens of their state to vote in certain ways. This is hardly exciting, nor anything momentus in terms of governmental design.

The statement that the federal government owes its existence to the states its stretching it. The federal government was given EXCLUSIVE jurisdiction from the state legislatures over certain matters and owes its allegiance to no state at all. It was designed that way.

And just for a realistic step back at the statement that, "Without the State governments established by the people, the federal government could not have been brought into existence and, as stated by Madison, could not function."

Well, then what are we complaining about? It seems to me the federal government has found itself capable of functioning quite well without state governments. Isn't that why we are complaining?

Isn't it obvious that the federal government, once set into motion, is capable of functioning and that, under its basic charter, will require 38 states to indeed, stop it? I think, therefore, that the opposite could not be more true.

Again, take another look at it, and you will see it was designed to exist apart from state governments. That is why, for example, you see the quote (which I think might also have been made by Madison) that the states will not to guard their spheres jealously in order to prevent tyranny in the federal government. It was known, even at the time of design, that the federal government was to take on a life of its own.

There is no principal/agency relationship where the "agent" is given supremacy. The federal government was designed to operate independently from the states.

December 14, 2009 at 5:01 am

Bob Greenslade

The view expressed by Madison was echoed throughout the States before and during the ratification process.

James Wilson, in a speech on October 6, 1787, said the following:

“For I will undertake to prove that upon their (the States) existence depends the existence of the Federal plan… The President is to be chosen by electors, nominated in such manner as the legislature of each State may direct; so that if there is no (State) legislature there can be no electors, and consequently the office of President cannot be supplied.”

During debate on the proposed constitution in the Connecticut Ratifying Convention, Richard Law stated:

“[T]his general government rests upon the state governments for its support. It is like a vast and magnificent bridge, built upon thirteen strong and stately pillars.”

Oliver Wolcott also expressed his view:

“The constitution effectually secures the states in their several rights. It must secure them for its own sake; for they are the pillars which uphold the general system.”

In the ratification debate in Massachusetts, Mr. Sumner stated:

“[T]he General Government depends on the State Legislatures for its very existence. The President is to be chosen by Electors, under the Regulations of the State Legislatures… [N]othing is clearer than that the existence of the Legislatures in the different States, is essential to the very being of the General Government.”

In the North Carolina Convention, William Davie stated:

“Is not this government a nerveless mass, a dead carcass, without the executive power? Let your representatives be the most vicious demons that ever existed; let them plot against the liberties of America; let them conspire against its happiness,—all their machinations will not prevail if not put in execution. By whom are their laws and projects to be executed? By the President. How is he created? By electors appointed by the people under the direction of the legislature—by a union of the interest of the people and the state governments. The state governments can put a veto, at any time, on the general government, by ceasing to continue the executive power.”

James Wilson made the following remarks in the Pennsylvania Ratifying Convention:

“The President of the United States is to be chosen by electors appointed in the different states, in such manner as the legislature shall direct. Unless there be legislatures to appoint electors, the President cannot be chosen; the idea, therefore, of the existing government of the states, is pre-supposed in the very mode of constituting the legislative and the executive departments of the general government. The same principle will apply to the judicial department. The judges are to be nominated by the President, and appointed by him, with the advice and consent of the Senate.”

As for Doug Bartley's comment, "the states, not the people, ratified the constitution….." Well, not exactly. The Framers arranged for the Constitution to be sent to conventions organized state by state (because there was no other way of organizing them), but the conventions were not creatures of the states. They were popularly elected and designed to represent the people. The theory on which the Constitution was drafted and ratified was that the people were empowering two sets of agents to handle two separate spheres — much as one has a lawyer and accountant to handle different parts of his business. See, e.g., Federalist 46.

The reason for choosing that ratification process was the same as the reason for the first three words of the Preamble: to make it clear that the Constitution, unlike the Articles of Confederation, was emphatically NOT a compact of the states. The state compact theory was popularized extensively only several years after the ratification. In general, post-ratification developments are not reliable indicators of original understanding.

The interstate commerce clause was not designed to allow the federal government to control trade between the states, it was so that the federal government could stop states from trade discrimination between states.

When Jefferson and Madison argued against Hamilton's proposal for a national bank in 1791, Jefferson wrote an excellent paper describing the following. He described how the general welfare and commerce clauses are to be interpreted with respect to the Founder's requirement that the federal government's powers are limited to those expressly delegated to it by the Constitution. Jefferson noted the following about the commerce clause, for example.

“For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.” –Thomas Jefferson, Jefferson’s Opinion on the Constitutionality of a National Bank : 1791. http://avalon.law.yale.edu/18th_century/bank-tj.a…

(Jefferson's note about the general welfare clause in the document reference above is worth the read.)

Also consider that, while discussing the Founder's division of federal and state government powers, Jefferson had noted that the Founders had trusted the states, not the Oval Office and Congress, with care of the people.

"Our citizens have wisely formed themselves into one nation as to others and several States as among themselves. To the united nation belong our external and mutual relations; >>to each State, severally, the care of our persons<< (emphasis added), our property, our reputation and religious freedom." –Thomas Jefferson: To Rhode Island Assembly, 1801. ME 10:262 http://tinyurl.com/onx4j

Given Jefferson's words, it doesn't surprise me that the USSC has already decided that Congress has no business sticking its big nose into the medical practice which is reasonably regarded as a state power issue, IMO.

But the reason that DC is now full of power-hungry crook-lawmakers who ignore constitutional limits on Congress, particularly limits on federal taxation and spending, is this, IMO. Citizens have not been teaching the Constitution and its history to their children for many generations, particularly the very important constitutional principle of state sovereignty. The consequence of this was that, by the time constitutionally clueless FDR was president, both the federal and state legislatures were full of lawmakers who evidently couldn't care less about state sovereignty.

But what finished off state sovereignty, from a PC point of view anyway, is that FDR had managed to nominate eight justices, many of them pro-big federal government and outcome-driven, which is undoubtedly what FDR wanted. And if you look at the opinions of cases where the limits of Congress's power was tested, the justices wrongly ignored state sovereignty, IMO.

In fact, if the example case mentioned in this blog was Wickard v. Filburn, then the opinion of that case has the most watered down reference to 10th A. protected state powers that I have ever seen.

"In discussion and decision, the point of reference, instead of being what was "necessary and proper" to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit in the status of statehood." –Justice Jackson(?), Wickard v. Filburn, 1942. http://supreme.justia.com/us/317/111/case.html

This scandalous watering down of 10th A. protected state sovereignty essentially lowers state sovereignty to level of gossip, mere rumor.

Also consider that the opinion then goes on to reference the Interstate Commerce Act of 1887. And what people probably don't understand about this act (evidently including justices) is that Congress cannot give itself new powers. The constitutional reality is that Article V requires Congress to propose amendments to the states which would give Congress the power it is seeking if the states chose to ratify them; the states don't have to ratify any proposed amendment.

And how ironic that the USSC had decided that Congress has no business regulating agriculture several years before it decided Wickard v. Filburn.

“From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. 18 The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden.” –United States v. Butler, 1936.

I also noticed that other cases in that period fail to mention state sovereignty relevant statutes like Article V or the 10th A. when testing the limits of Congress's power, essentially sweeping state sovereignty under the carpet altogether.

Again, we have a big federal government mess on our hands because people don't know that the corrupt USSC has been giving the green light to corrupt Congress to overstep it constitutional limits since the days of corrupt FDR.

Getting back federally mandated healthcare insurance, again, not only did Jefferson explain that Congress has no business interfering in intrastate commerce, but the USSC has decided that Congress has no business regulating intrastate medicine.

Finally, the following link should help give people an idea how state sovereignty-ignorant voters have shot themselves in the foot with big, corrupt federal government as a consequence of the ill-conceived, anti-state sovereignty 16th and 17th Amendments.

In the Massachusetts Ratifying Convention in 1788, Mr. Ames made the following statement concerning the original method of electing the members to the Senate and the consequences if the people elected them:

“But whom, in that case, would they represent? Not the legislatures of the states, but the people. This would totally obliterate the federal features of the Constitution. What would become of the state governments, and on whom would devolve the duty of defending them against the encroachment of the federal Government? A consolidation of the states would ensue, which, it is conceded, would subvert the new Constitution, and against which this very article, so much condemned, is our best security. Too much provision cannot be made against a consolidation. The state governments represent the wishes, and feelings, and local interests, of the people. They are the safeguard and ornament of the Constitution; they will protract the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.”

During debate on the proposed constitution in the North Carolina Ratifying Convention, William Davie stated:

“The Federal conventions were as well convinced as the members of this House that the state governments were absolutely necessary to the existence of the federal government. They considered them as the great massy pillars on which this political fabric was to be extended and supported; and were fully persuaded that, when they were removed, or should moulder down by time, the general government must tumble into ruin. A very little reflection will show that no department of it can exist without the state governments.

If the state government vanishes, the general government must also vanish. This is the foundation on which the government was raised, and without which it cannot possibly exist.

The next department is the Senate. How is it formed? By the states themselves. Do they not choose them? Are they not created by them? And will they not have the interests of the states particularly at heart? The states, sir, can put a final period to the government… If the state legislatures think proper, they may refuse to choose senators, and the government must be destroyed.”

Without the States, the first Senate could not have been seated and George Washington could not have been elected to office. Thus, the federal government could not have been launched and put into motion without the States. As stated above, that was the original view and understanding of individuals who debated ratification.

Individual mandates to purchase health insurance are unconstitutional. To read more about the individual mandate and its relationship to the United States Constitution, please follow the link to see a comprehensive and itemized list of all recent articles, commentary, white papers, video and etc. on the subject! My website (single issue, no advertising, no soliciting) is completely dedicated to this specific issue.

Rob Natelson and the CNS News staff have done an exceptional job researching and publishing articles on this subject. Thank you for your past work; please continue to publish on this subject going forward.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.